Finding a ‘Home’ Online

An oft-repeated mantra in scholarship on privacy is that you have the greatest expectation of privacy inside of your home, and the least expectation of privacy in public. What this means is that you can legitimately assume what happens inside your home will stay in your home (to use a phrasing usually connected with visits to Las Vegas). But if people can view or hear an event or occurrence, whether you are having an argument on your cellphone or you trip, fall, and people can see it without technological assistance, you cannot reasonably believe that what happened will remain ‘private.’ This perspective permeates law and how cases involving privacy and the use of personal information are resolved. But in an era in which many people live their lives online where some much is publicly accessible, what does the concept of home mean and how should it influence how we view privacy?

Constitutional privacy concepts

Many of our ideas about privacy and the home stem from law cases that considered the home as a structure. Privacy protection for the ‘home’ has roots in the US Constitution. The oft-forgotten 3rd Amendment prohibits the government from forcing you to house soldiers in your home. The 4th Amendment itself offers protection against unreasonable government searches and seizures of “persons, houses, papers, and effects.” In the early days of US Supreme Court 4th Amendment privacy jurisprudence, the the concept of home, as a physical structure was important. In Olmstead v. United States, a case that considered the constitutionality of federal agents wiretapping a suspected bootlegger’s basement without judicial permission, the Court ruled that because the wiretap did not require physical trespass it did not invade privacy. The one bright-spot in the Olmstead opinion was Justice Brandeis’ dissent in which he asserted that physical property was central to 4th Amendment protection:

The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men.

This dissent provides the foundation for Katz v. United States, which shapes much of the current law related to 4th Amendment privacy and expectations. Here, the Court recognized that the 4th Amendment “protects people, not places.” Therefore, it did not matter if Mr. Katz had used a public phone booth to make a call, he had a reasonable expectation that his phone call would remain private. Justice Harlan provides, in his concurrence, what is now used as the standard for a reasonable expectation of privacy: 1) demonstrating an actual expectation of privacy, and 2) the expectation is one that society is prepared to accept. So when law enforcement used a thermal imager without a warrant on a man’s house, the Court ruled that it was an unlawful search. But even this opinion uses the analogy of physically intruding into the home as a rationale for why the use of the then-new technology was unconstitutional. The Court more recently ruled it was an unconstitutional search when law enforcement placed a tracking device on a man’s SUV. This ruling, too, was based on the idea of trespass to property.

According to a 2015 Ofcom study, people aged 16-24 spent more than one day per week online, twice as much time online than a decade earlier. A Pew Research Center study published the same year found that at least ¾ of the Americans surveyed went online at least daily, and 21 percent claimed to be almost constantly online. Thirty-six percent of people aged 18-29 claimed to be online constantly, and another 50 percent go online multiple times a day. And social scientists have spent a lot of time identifying the ‘whys’ of Internet and social media use including entertainment, relationship maintenance, and identity formation. Though containing social, or public components, these activities could be perceived of as the kind of things people in which people engage when in the place in which they feel the most comfortable, the place like home. Unfortunately, this more complex understanding of what happens in a home is ignored for the simplistic idea of home as completely private.

So what then?

It may, then, be necessary for those in charge of constructing and interpreting the law to consider how people actually behave and interpret different contexts. A return to Justice Brandeis’ Olmstead dissent would also be most useful. Material or physical property, like a home, is not and cannot be the boundary by which we measure all questions of privacy in digital spaces. Our “spiritual nature, … feelings, and … intellect,” in other words the intangible, are deserving of privacy protection. This, of course, would not be a bright-line rule, but would require a more exacting investigation into an individual’s actual expectations for their personal information.

It’s encouraging that there are signs from the current US Supreme Court that some of the Justices recognize the drawbacks of attaching expectations of privacy to physical property. Though agreeing with the ruling in US v. Jones where the Court found the tracking of a man’s SUV violated the 4th Amendment, Justice Sotomayor wrote her own concurring opinion. In it Justice Sotomayor recognizes that invasion of privacy, in this case by government surveillance, no longer needs physical means. She goes further to criticize the third-party doctrine, which deems all information given to a third-party as being without an expectation of privacy: “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” Online life forces us to reconsider how we conceptualize “home” both legally and socially, and therefore privacy, and physical structures.

References

Jacobson, K., 2009. A developed nature: a phenomenological account of the experience of home. Continental Philosophy Review, 42(3), pp.355-373.

Jasmine E. McNealy is an assistant professor in the Department of Telecommunication, in the College of Journalism and Communications at the University of Florida, where she studies information, communication and technology with a view toward influencing law and policy.